Opinion
10247 Index 652432/17
10-31-2019
UNIVERSAL CONSTRUCTION RESOURCES, INC., Plaintiff–Respondent, v. NEW YORK CITY HOUSING AUTHORITY, Defendant–Appellant.
Kelly D. MacNeal, New York (Gil Nahmias of counsel), for Appellant. Sullivan PC, New York (Peter R. Sullivan of counsel), for Respondent.
Kelly D. MacNeal, New York (Gil Nahmias of counsel), for Appellant.
Sullivan PC, New York (Peter R. Sullivan of counsel), for Respondent.
Friedman, J.P., Kapnick, Kern, Singh, JJ.
Three of the purported notices of claim were not facially compliant with Section 23 of the contract. Neither the July 19, 2015 letter nor the April 11, 2016 letter was designated a notice of claim, a defect this Court has found to warrant the dismissal of a contractor's action against the Housing Authority (see Matter of Intercontinental Constr. Contr., Inc. v. New York City Hous. Auth. , 173 A.D.3d 453, 454, 102 N.Y.S.3d 576 [1st Dept. 2019] ). The failure to state the "nature and amount of the extra costs or damages" sought in the July 19, 2015, February 12, 2016, and April 11, 2016 letters also required dismissal (see Hi–Tech Constr. & Mgt. Servs. Inc. v. Housing Auth. of the City of N.Y. , 125 A.D.3d 542, 542, 4 N.Y.S.3d 189 [1st Dept. 2015], lv denied 26 N.Y.3d 908, 18 N.Y.S.3d 599, 40 N.E.3d 577 [2015] ), since Section 23 makes notice an express condition precedent to suit or recovery (see Schindler El. Corp. v. Tully Constr. Co., Inc. , 139 A.D.3d 930, 931, 30 N.Y.S.3d 707 [1st Dept. 2016] ).
The March 1, 2017 notice of claim was untimely, as the project was substantially completed on March 23, 2016, and the certificate of final acceptance was dated May 9, 2016. Therefore, plaintiff's claims or damages could have been ascertained well before the March 1, 2017 notice of claim was sent (see C.S.A. Contr. Corp. v. New York City School Constr. Auth. , 5 N.Y.3d 189, 192, 800 N.Y.S.2d 123, 833 N.E.2d 266 [2005] ; D & L Assoc., Inc. v. New York City School Constr. Auth. , 69 A.D.3d 435, 435, 894 N.Y.S.2d 14 [1st Dept. 2010] ).
Additional discovery is not necessary, as plaintiff was required to maintain weekly payroll records, rented or acquired materials and equipment before it began work, and based its subcontractor costs on pre-negotiated rates. Based on this data, plaintiff could have, by March 23, 2016 when the work was substantially complete, or upon final acceptance of the work on May 9, 2016, calculated costs and damages (see D & L Assoc., Inc. , 69 A.D.3d at 435, 894 N.Y.S.2d 14 ). Plaintiff has made no showing how defendant's alleged misconduct impaired its ability to fulfill Section 23 of the contract ( A.H.A. Gen. Constr. v. New York City Hous. Auth. , 92 N.Y.2d 20, 33–34, 677 N.Y.S.2d 9, 699 N.E.2d 368 [1998] ).